Gaines v. Van Demark
| Decision Date | 13 December 1937 |
| Docket Number | 7714. |
| Citation | 74 P.2d 454,106 Mont. 1 |
| Parties | GAINES v. VAN DEMARK. |
| Court | Montana Supreme Court |
Appeal from District Court, Ninth District, Glacier County; R. M Hattersley, Judge.
Action to quiet title by Harriet C. Gaines against Eva S. Van Demark. From the decree, the defendant appeals.
Reversed with instructions.
Ford & Fitzstephens, of Cut Bank, for appellant.
Doyle & Bowe, of Cut Bank, for respondent.
This is an action to quiet title to certain land in Glacier county. The appeal is from a decree by which plaintiff was adjudged the owner of an undivided seven-ninths interest therein, and the defendant the owner of an undivided two-ninths interest. By the appeal, defendant, as appellant, seeks to have the decree modified so as to reduce plaintiff's (respondent's) interest to an undivided five-ninths, and to enlarge her interest to an undivided four-ninths. The record shows that the action was originally instituted against two defendants, but only one answered; the other appeared by general demurrer, subsequently withdrawn, and default was entered against him. The parties will be mentioned as they were designated in the trial court.
The case was tried by the court on an agreed statement of facts which disclosed the following chain of events with respect to the history and disposition of the controverted two-ninths interest: On December 27, 1919, defendant's predecessor in interest, one Whetstone, obtained a judgment, duly docketed, against Grover C. Gaines, plaintiff's predecessor in interest of the two-ninths interest. On December 23, 1923, Henry C. Gaines, the father of Grover C Gaines, died intestate, leaving as his heirs at law his wife and three children, one of whom was Grover C. Gaines. On January 23, 1924, plaintiff, widow of deceased, filed petition for letters of administration which were subsequently issued to her. September 6, 1924, Grover C. Gaines and others executed and delivered a quitclaim deed to plaintiff which included the two-ninths interest involved here. This deed was not filed for record with the county clerk and recorder until November 30, 1925. Also on September 6, 1924, petition for final distribution was filed by the widow, as administratrix, subsequent, however, to the deed to her of the same date. On September 17, 1924, decree of final distribution was signed by the judge, which decree, along with other distributions, distributed the undivided two-ninths interest here in controversy to Grover C. Gaines. The decree of distribution was not filed with the clerk of court until July 18, 1925, ten months after the signing thereof. On the same date, July 18, 1925, a writ of execution was issued upon the judgment procured by defendant's predecessor in interest, Whetstone, and the two-ninths interest of Grover C. Gaines was thereafter sold at sheriff's sale and by mesne conveyance acquired by defendant herein along with an additional two-ninths interest in the same land. Thereafter, on November 24, 1936, plaintiff instituted this action to quiet title.
By stipulation of counsel, the only question for decision by the trial court was as to the respective rights of the parties to the two-ninths interest in the land inherited by Grover C. Gaines. The assignments of error raise this single issue and squarely challenge the action of the trial court in decreeing title to this portion of the land to plaintiff rather than defendant.
Plaintiff bases her claim of title upon the quitclaim deed, executed and delivered to her by her son, Grover C. Gaines, on September 6, 1924. The agreed statement of facts shows that this transfer was made without "monetary consideration."
Defendant's claim of title is based upon a quitclaim deed executed by a grantee of the purchaser at the sheriff's sale and filed for record subsequent to the filing of plaintiff's deed. Defendant introduced the abstract of title to the land and the court admitted it in evidence. Upon this evidence and the stipulated agreement of facts, defendant rested his case.
The question thus presented is whether the lien of the Whetstone judgment attached to the interest of Grover C. Gaines as heir at law of his father, who died intestate. Otherwise stated, Does the lien of a judgment attach to the interest of an heir at law upon the death of the decedent?
The lien of a judgment depends upon the express provisions of the statute, and the general rule is that a judgment is a lien against the real estate of a judgment debtor only as provided by statute. 15 R.C.L. § 250, p. 794 et seq.; McMillan v. Davenport, 44 Mont. 23, 118 P. 756, Ann.Cas.1912D, 984. The statutory provision is section 9410, Revised Codes. The terminology of this section is definite in its inclusion of real property. The pertinent part clearly and expressly provides that: "From the time the judgment is docketed it becomes a lien upon all real property of the judgment debtor *** owned by him at the time, or which he may afterward acquire." Such a lien continues for six years. The property interest in controversy here necessarily came within the designation of "property afterwards acquired," if it was ever acquired by the heir at all.
The law is well settled in this state that where one dies intestate, title to his property, real and personal, vests immediately in his heirs. Section 7072, Rev.Codes; see In re Estate of Clark (Mont.) 74 P.2d 401, decided November 12, 1937, and not yet reported [in State report], and cases therein cited. Such transfer is by operation of law, which by statute is given the same force and effect as a transfer in writing. See section 6859, Revised Codes, which reads as follows: "An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing subscribed by the party disposing of the same, or by his agent thereunto authorized by writing." This being the law, the conclusion is inescapable that section 9410, supra, is broad enough to include, and does include, an interest in realty, the title to which vests subsequent to the docketing of the judgment and before satisfaction of the judgment lien.
There can be no question but what a judgment may constitute a part of a chain of title to real or personal property. Wills v. Morris, 100 Mont. 514, 523, 50 P.2d 862, and authorities therein cited. It is apparently the contention of plaintiff that in order for a judgment lien to attach, some interest of the judgment debtor must be...
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